Edward W. R. v. Barbara A. R.

—Order unanimously affirmed without costs. Memorandum: We affirm for the reasons stated in the decision at Supreme Court. In addition, we decline to grant the request of plaintiff on appeal to amend the complaint to conform to the proof at trial and to grant him a divorce on the ground of constructive abandonment (see, Diemer v Diemer, 8 NY2d 206, [965] 211-212). The fact that the parties did not have sexual relations for more than one year does not by itself establish constructive abandonment (see, Hammer v Hammer, 34 NY2d 545, 546). Plaintiff failed to meet his burden of establishing that defendant refused to engage in sexual relations and that such refusal was “ ‘unjustified, willful, and continued, despite repeated requests * * * for resumption of cohabitation’ ” (Caprise v Caprise, 143 AD2d 968, 970, quoting Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C170:7, at 608; see also, Tissot v Tissot, 243 AD2d 462; Lyons v Lyons, 187 AD2d 415). (Appeal from Order of Supreme Court, Herkimer County, Parker, J.— Divorce.) Present — Denman, P. J., Lawton, Wisner, Balio and Fallon, JJ.